Date: 20100330
Docket: IMM-5109-08
Citation: 2010 FC 341
Ottawa, Ontario, March 30, 2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
DENEIVA
OLIVIA RIGG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION AND THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
Ms. Deneiva Rigg arrived in Canada from Jamaica in 1977 when she was 12
years old. Due to criminal convictions in Canada, she was ordered to be
deported in 2005. She applied for a pre-removal risk assessment on grounds that
she feared persecution in Jamaica due to her sexual orientation and drug
addiction. The officer who carried out the assessment found that Ms. Rigg was
probably not at risk of persecution, but that decision was overturned on
judicial review. Another officer reconsidered Ms. Rigg’s circumstances and,
again, turned her down.
[2]
Ms. Rigg argues that the officer erred in his treatment of the evidence
and failed to provide adequate reasons for his decision. She asks me to
overturn the decision and order another officer to carry out a reassessment. I
agree that the officer erred and, therefore, will grant this application for
judicial review.
II. Issues
[3]
There are two issues:
1. Did
the officer err in his treatment of the evidence?
2. Were
of the officer’s reasons adequate?
[4]
I find that the officer erred in his treatment of the evidence.
Therefore, it is unnecessary to consider the second issue.
III. Analysis
(1) The
Officer’s Decision
[5]
Regarding Ms. Rigg’s sexual orientation, the officer was satisfied on
the evidence that Ms. Rigg was bisexual. He found, however, she would not be
targeted for persecution in Jamaica “if she wishes to conceal her sexual
orientation as she had done in the past in Canada”. The officer considered
letters of support from Amnesty International which described violence in Jamaica
against gay men and women. But the officer went on to find that violence is
localized in urban areas and that Ms. Rigg could readily find a place to live
in safer parts of Jamaica.
[6]
As for Ms. Rigg’s problems with drugs, the officer noted that the
evidence showed that she was now drug-free. Ms. Rigg had also suggested that
she was likely to be homeless on return to Jamaica because she no longer had
any family living there. The officer discounted her concerns after reviewing
the various programs available in Jamaica for the homeless.
A. Did the officer err in his
treatment of the evidence?
[7]
I can overturn the officer’s decision only if I find that his treatment
of the evidence was unreasonable.
[8]
The principal basis for Ms. Rigg’s claim to be at risk was her sexual
orientation. The officer referred to the following evidence on this issue:
• Ms.
Rigg’s affidavit;
• letters
from Amnesty International;
• research
from the Immigration and Refugee Board; and
• an
Operational Guidance Note from the U.K. Border and Immigration Agency.
[9]
Based on this evidence, the officer found that, outside a circle of
close friends, Ms. Rigg kept her sexual orientation private. If she continued
to do so, she would not be targeted for persecution in Jamaica. The officer
appears to have overlooked the evidence showing that Ms. Rigg is now in an open
lesbian relationship.
[10]
The officer stated that he would give the Amnesty International letters
considerable weight and noted the authors’ concern that homosexual women in
general, and Ms. Rigg in particular, are at risk of grave human rights
violations in Jamaica. The officer also noted that Jamaican law targets
homosexual conduct by men, not women. Finally, he concluded that the risk of
homophobic violence was greatest in urban areas, which Ms. Rigg could avoid by
moving to a safer area.
[11]
There was other documentary evidence before the officer, including reports
from Amnesty International, Human Rights Watch and the U.S. Department of
State, to which he did not refer. Without cataloguing all of the relevant
contents of these reports, I note in particular that there was considerable evidence
before the officer showing:
• wide-spread violence in Jamaica against lesbian women,
particularly those (like Ms. Rigg) who have a masculine appearance;
• many
Jamaicans believe that lesbians can be cured through rape;
• Jamaican
police frequently abuse gay men and women; and
• inadequate
state protection does not exist for homosexuals at risk of violence.
[12]
In my view, the officer’s treatment of the evidence was unreasonable.
The officer failed to analyze the bulk of the documentary evidence supporting
Ms. Rigg’s application. While he purported to give considerable weight to the
letters from Amnesty International, he did not explain why he found the
contrary, and more general, sources more persuasive.
IV. Conclusion and Disposition
[13]
While an officer is entitled to weigh the evidence and need not cite all
of it in the reasons for decision, he or she cannot base a decision on a
selective review of the evidence. Where there is credible evidence supporting
the opposite of the officer’s conclusion, he or she must refer to it and
explain why it can be discounted (Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration), [1998] F.C.J. No. 1425).
[14]
The application for judicial review is allowed. Ms. Rigg sought costs,
but I can find no special circumstances warranting them. Counsel requested an
opportunity to make submissions regarding a question for certification. I will
consider any submissions filed within ten days of this judgment.
JUDGMENT
THIS COURT’S JUDGMENT IS
that
1.
The
application for judicial review is allowed. The matter is referred back to
another officer for reconsideration.
2.
There
is no order as to costs.
3.
Submissions
regarding a certified question may be filed within ten days of this judgment.
“James
W. O’Reilly”
Email this Content